I’m taking tomorrow off to focus on a video project, but in the meantime, here’s a big one to throw out there. I’m rethinking my stance on the death penalty.
Though the issue is hugely polarizing in American politics, I don’t remember discussing it much with friends or colleagues. I have, however, discussed it quite a bit with my wife. I’ve always thought that in certain cases, the death penalty was appropriate. She is proud of Portugal’s early repudiation of the policy and finds modern day executions to be a sign of a barbaric government. It’s one of the very few issues that we’ve really disagreed on.
But lately I find my defense of it withering in light of the ugly reality. When the audience of a Republican political debate wildly cheers the mere mention of a candidate presiding over 234 executions, something is very wrong.
In that linked video, Texas Governor Rick Perry is asked if he loses any sleep at night over the possibility that some of those 234 executed individuals might have been innocent. He answers, “Never.”
One execution that should have given Perry at least a little niggle of concern was Cameron Todd Willingham, put to death in 2004 for the arson deaths of his three children. Before his execution, a nationally recognized arson expert said that Willingham’s conviction was based on erroneous forensic analysis. His report was sent to state officials, who did not act on it. Perry refused to sign a stay of execution, and it went on as scheduled.
The story didn’t die with Willingham, however, and a five-person panel of the nation’s leading arson experts concluded that in fact none of the scientific analysis used to convict Willingham was valid. The Texas Forensic Science Commission investigated, and didn’t like what it saw. It especially didn’t like the report it received from its hired arson expert, who said that not only had the expert witnesses at Willingham’s trial been wrong, but they should have known they were wrong at the time. In fact, there had been no arson.
That’s when the politicking came in. The commission scheduled a hearing in mid-2009 to formally hear the testimony of this expert. Two days before it was to take place, the chair of the commission and three other members were replaced by Governor Rick Perry. The new chair immediately canceled the hearing and redirected the scope of the investigation.
When you’re contemplating a run for US president, you don’t want minor little issues like a wrongful execution to cloud your message. But I’m not sure Perry should even be that concerned, given one supporter’s response: “It takes balls to kill an innocent man,” he said.
That is such a perversion of the death penalty — who cares if some guy is innocent, what matters is the macho swagger of killing him anyway — that I was honestly stopped in my tracks upon reading it. From that moment on, I’ve been doing research and thinking hard. And in the middle of all this, Troy Davis was executed.
Davis is another man whose conviction has been thrown into doubt. Accused of killing a police officer, his conviction was based solely on witness testimony. There was zero physical evidence. Since the trial, seven of the nine witnesses who testified against him have recanted or contradicted their testimony. One of the two who did not was Sylvester Coles, who has now been implicated by nine witnesses as the actual shooter.
The affidavits by the witnesses who recanted (including some who did not testify at the trial) have a recurring theme: they all talk about police coercion in their questioning. Four of them did not read the statement the police told them to sign. One couldn’t, because he’s illiterate.
Unfortunately for Troy Davis, while the US principle of justice is “innocent until proven guilty,” that reverses after a conviction. Then it’s “guilty until proven innocent,” and proof is hard to come by. (Though not impossible, as demonstrated by the 17 former death row inmates whose innocence was proven by DNA evidence.) Witness statements have the power to convict, but in an appeal they’re not usually given the same weight. The time to stop a miscarriage of justice is before the conviction, not after, but forensic mistakes, inaccurate memories and testimony, incomplete investigations, prejudice, ego, and politics can all get in the way.
It’s those last three that keep circling around in my thinking. Troy Davis was a black man, living in Georgia, accused of killing a white police officer. It’s difficult to imagine that prejudice and politics were not involved in his case. Cameron Todd Willingham, on the other hand, was a white man living in Texas, but also a previously convicted criminal and apparently a wife beater. His last words before he died were a profanity-laced invective against his ex-wife. Personally I think any man who beats his wife should be thrown into a small dark room for a good long time, but we don’t kill people just because they’re reprehensible human beings. (If we did, there’d be almost no one left alive inside the Washington Beltway.) We kill them because we are convinced, beyond any reasonable doubt, that they have committed a grievous crime.
There was reasonable doubt in both of these cases, but that didn’t seem to matter. Egos, prejudice and politics got in the way. Digging into other past cases reveals more of the same.
I formed my belief in the rightness of the death penalty when I was younger and idealistic. These days I’m better informed, more willing to do research, and much more skeptical. My belief in the death penalty doesn’t stand up to a critical review, because it was based on a concurrent belief in a justice system that didn’t make mistakes, and a political system that worked for the best interests of the citizens, not the politicians.
Those systems don’t exist. I wish they did. But in the real world with actual humans involved, the death penalty is subject to all of our failings. As such, it is inherently flawed. We cannot guarantee that we aren’t executing innocent people. And if we can’t guarantee that, then we have no business executing anyone at all.